democratic impasse.com

The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them. To merit the public trust, these judgments must not appear simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.
As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.

In four sentences, Donald Ayer aptly describes a traditional, conservative perspective on the role of the United States Supreme Court within the American political system and the willingness of the court's majority (three of whom were appointed by Donald Trump) to veer far astray from that vision (as he describes in his New York Times op-ed). Mr. Ayer is hardly a liberal/progressive/socialist/woke -- take your pick -- critic; although he condemned Bill Barr, when Barr served as Trump's Attorney General, for his "efforts to place the president above the law", his conservative Republican credentials date back to the Reagan era:

In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).

Republicans, beginning with the Nixon presidency (when the party began its quest to remake the federal bench) through the founding of the Federalist Society (during the Reagan presidency) and the nomination of the current chief justice by George W. Bush (when John Roberts pledged, "I will remember that it's my job to call balls and strikes, and not to pitch or bat"), have asserted their principled opposition to activist judges.

Were liberal observers who recalled an earlier SCOTUS era lulled into a foolish faith in the court throughout this Republican crusade? Ryan Doerfler (who has some promising ideas on restraining an out of control court) seems to think so:

For older liberals, the tremendous civil rights advances by the Warren Court — the desegregation of schools in Brown v. Board of Education and the recognition of a right to interracial marriage in Loving v. Virginia, for example — loom larger in historical memory than they do for younger citizens. Drawing on those memories, the older cohort came to view the court as a bulwark against the rise of Movement Conservatism — even as the court grew more conservative, owing in part to Republican presidents having more nomination opportunities.

Well, not quite. While older liberals appreciated landmark decisions that represented great advances on behalf of civil rights, few of us listening to Roberts were reassured by his pledge. Our fears regarding the direction of the court began decades earlier. We knew what was up. Nonetheless (when the balance was still 5-4) we did hold out hope that (with the prospect of future Democratic presidents' nominations) the court might still serve, albeit less invariably, as a bulwark against injustice. (With a Justice Merrick Garland, that might have held.)

With the Trump Court (which Mitch McConnell regards as his foremost accomplishment), those hopes are gone. The court's secure majority now consists of ideologues in sync with the agenda of the Republican Party and, now that they find themselves in control, unrestrained by quaint conservative notions of judicial restraint or of a commitment to precedent. The guiding principles -- whether originalist or textualist or whichever precepts may be in vogue among legal scholars within the conservative legal movement -- that these justices profess to embrace are freely abandoned (without acknowledgement) whenever the majority is intent on achieving a particular result.

This majority hasn't revealed a glimmer of awareness of the fallibility of its judgment (or, for that matter, of the sordid, antidemocratic partisanship through which Republicans gained the majority). Moreover, in imposing a radical vision on the country, the justices' hubris has been joined with a stunning indifference to the human toll wrought by their decisions.

[More to come.]

George Will (who has a new book out this week) sat down for an interview with Politico, which included this exchange regarding grievances (clearly distinct from conservative philosophy) and politics as the stuff of public policy:

Q: This brings to mind a conversation I had earlier this year with a devout Christian who expressed alarm at the number of people who self-identified as evangelical Christians but whose idea of what that means is entirely cultural instead of being rooted in scripture. It feels like you’re describing something similar with Trump: That there are self-identified “conservatives” whose idea of what conservatism means is entirely based on cultural identity and cultural grievance instead of those tenets of conservatism as a philosophy. Do you think that that’s a fair comparison?

Will: I think it is. Donald Trump is the purest expression of the current pandemic of performative politics — politics cut off from anything other than making one’s adherents feel good. And people nowadays feel good by disliking the other team.

Earlier in the interview, Will remarked:

One of the striking things to me about our politics is that the grievances — which multiply like rabbits and cause people to be constantly furious — are very difficult to address with “politics” understood as “legislation and policy.” I mean, if people feel condescended to, how do you write a bill and take care of condescension? It’s very hard to address, which is why politics becomes sort of cut off from the normal stuff of politics. Donald Trump says, “these people despise you and we should despise them.” What do you do politically? I don’t get it.

This is related to a recurring theme of Jonathan Bernstein on why Congress can’t solve hard problems, which he has attributed to a post-policy Republican Party. Thus, Mitch McConnell (when in the minority) refuses to engage with the majority and thereby foregoes the possibility of influencing public policy (to nudge it in a Republican direction); or the members of the Freedom Caucus oppose a Republican Speaker (who has used his leverage to forge a compromise) even though it’s clear that by undermining him they will ensure a policy win for Democrats.

Owing the Libs

To “own” someone on the internet is to dominate and humiliate them, and the “libs” can loosely be defined as anyone to the left of Sean Hannity. -- Eve Peyser, "The Summer's Hottest Trend Is Owning the Libs," Rolling Stone (2017).

Peyser added: 'The problem is, the “owning the libs” model of politics doesn’t have a point of view. It isn’t about furthering an ideological goal, only churlishness — it seeks to make the world a nastier and dumber place. The emptiness of it all is haunting.'

Well, maybe so, but let's shift our focus away from national politics to the state level. Let's look, in particular, at Red states where Republican governors and state legislative supermajorities are in place. Public policy for good or for ill gets enacted. No compromises or even engagement with Democratic legislators (or other officials) are necessary. And one critical strand of Republican public policy commitments has become clear: to employ the coercive power of the state to own the libs.

Domination and humiliation, via a Twitter exchange or an insulting provocation on Fox News Channel, may not advance policy or ideological goals, but a churlish governor backed by a spiteful state legislative majority can inflict damage on a community. I suggest that this is a lesson Republicans -- where they have a lock on power -- have learned.

Republicans in Texas and Florida (for instance) have made a point of forcing cities, counties, and school districts, as well as private enterprises, to bend to the will of the state. Bans on both vaccine requirements and mask mandates can be seen in this light. They are inconsistent with conservative principles. They are antithetical to public health. In the absence of cultural grievance, they wouldn't come to pass. Apart from owning the libs, these policies make no sense. They are methods of domination and humiliation -- and, crucially, they transcend mere ridicule and rhetoric.

Trolling on social media by a senator or spewing non sequiturs by a Fox News personality may be no more than performative politics. That is, in Will's words, "making one’s adherents feel good. And people nowadays feel good by disliking the other team."

But the state can squash the policy preferences of city councils, county governments, and local school boards. If you are a parent in an urban area that embraces science, values public health, and votes Democratic, the governor can deliver state-sanctioned punishment to you and your child by making certain that your community's wishes count for nothing. While making your child's school less safe. That's owning the libs for Republicans in power.

George Will alludes to the fact that the Republican base despises its political opponents (such as, I suggest, those in Houston or Miami); he then asks: "What do you do politically? I don’t get it."

What you do is wield the coercive power of the state against the communities your side despises. This doesn't, by any stretch, count as principled conservatism, but it is a clear policy preference. And this where the Republican Party is today.

Sixty-three percent of Americans believe that Joe Biden legitimately won enough votes to win the presidency in 2020; while the doubters number only 36 percent,
78 percent of Republicans cast Biden's victory as illegitimate.

This finding, based on CNN polling, represents a five-alarm fire for democracy.

Republicans overwhelmingly have embraced Trump's Big Lie. Few Republican officials -- who are unlikely to thrive in upcoming primary elections in 2022, should they chose to run (for anything from precinct committeeman to president) -- have pushed back against this litmus test for politicians and activists who wish to remain in good standing in Trump's party. Fox News Channel, it's wannabe imitators, rightwing talk radio, Breitbart, and other outfits that comprise the conservative media universe have fed the Big Lie. Republican-dominated state legislatures across the country continue to conduct fraudulent "audits," impose restrictions on voting (aimed squarely at Democratic constituencies), and replace independent, nonpartisan election officials with Republicans who will be authorized to overturn actual voting results based on the conviction that the only legitimate elections are those that the GOP wins.

Several generations of Republican voters have been taught to discard mainstream sources of authority (journalists, research scientists, doctors) and instead take their cues from those who hew to the party line. And the party line in today's GOP isn't guided by tradition, or values, or principle, but by a fierce dedication to stoking fear and hate of its political opponents. Even lifesaving vaccines -- which Fox News Corporation has embraced as corporate policy -- have been wrenched into weapons of the culture war by the star personalities on FNC, the right's most influential disinformation network.

Republican voters overwhelmingly believe the Big Lie. (Just as they have accepted other lies -- from the sources where they have placed their trust -- told to advance the culture war. Note the survey responses among the unvaccinated in the table below.)

The Big Lie, the disinformation channels, the voter suppression, the hijacking of election procedures, and the counterfeit audits all serve to undermine faith in our democratic institutions, the legitimacy of the 2020 election, and confidence in American elections going forward. Republicans, in states where they are in control, are poised to steal the next close election under cover of the baseless doubts they have deliberately generated.

American democracy is under attack. That should concern everyone who opposes this anti-democratic campaign. And yet, the poll results show something concerning:

Three-quarters of Republicans -- under the spell of the Big Lie -- embrace the idea that American democracy is under attack. Upon brief reflection, that's hardly surprising since they believe that Trump, not Biden, won the election. That fact should scare the daylights out of all Democrats -- whose party is the base for the vast majority of small-d democrats in the country. We've had plenty of evidence of what is going down among Republicans. We watch and hear the fabrications, distortions, and misdirection from Republican media. We observe elected officials in Washington and across the country stampeding to snuff out traditions and norms that have preserved our democracy. We see Trump's continuing dominance of the Republican Party and the Republican base.

(And we should recognize, if we've paid more than passing notice to the vocal opposition to public health measures to combat COVID, how powerful lies can be for the swath of Americans who, in great part, comprise the Republican base: folks who trust FNC, Facebook quacks, and governors like Ron DeSantis and Greg Abbott, while shunning evidence-based medical and scientific information.)

We have had more than ample warning.

"Trump-ism is going to survive Donald Trump, and he has unleashed a set of forces, anti-democratic -- small-D democratic -- anti-democratic forces that are going to plague American democracy for years to come," warned Rick Hasen, an election law expert at the University of California at Irvine. "I think we're in grave danger."

We have watched mostly from the sidelines as remedies, such as the Freedom to Vote Act, have been proposed.

Everything we've seen should alert us to the threat (and keep us from underestimating it). And yet: less than half, less even than a plurality, of Democrats believe that our democracy is under attack.

That's disconcerting.

Democratic leaders must step up. An all-out campaign for the Freedom to Vote Act is overdue.

The 9/11 attacks galvanized an outpouring of unity and solidarity in the United States. But two decades later, the anniversary showcased myriad ways in which the nation remains wounded, in large part from within, even as it celebrated heroism and resilience.
The degree of national polarization was particularly evident in former President George W. Bush’s pointed comparison of domestic extremists like those who stormed the U.S. Capitol on Jan. 6 with the 9/11 masterminds that he sought to hunt down after the attacks.
“In their disdain for pluralism, in their disdain for human life, in their determination to defile national symbols, they are children of the same foul spirit,” he told a gathering outside Shanksville, Pa., where one of the commandeered planes crashed. “And it is our continuing duty to confront them.”

While 9/11 brought Americans together, by the 2004 election, events had begun to drive us apart. Julia Azari notes that

the 2004 election revealed not a country in consensus but one increasingly divided along cultural lines. What the Iraq War seemed to do was bring cultural and national security questions into line, revisiting Vietnam War era themes about patriotism and social order.
. . .
Each of the issues up for debate in that election and every election affect real people in tangible ways. But the emergence of this new cultural polarization has given every issue the 9/11 treatment: to push it into the realm of abstract symbolism and away from the concrete issues – the lives – at stake. The result has been that politics and policy have become increasingly separated from each other.

This separation is seen dramatically in the real world, life and death, 21st century pandemic. COVID-19 first appeared twenty-one months ago and continues to rage in the United States, which leads the world in confirmed cases (more than 41 million) and deaths (nearly 660,000). On September 10, there were more than 1,800 deaths reported in the U.S. from COVID while more than 90,000 were hospitalized with the disease.

Vaccines -- shown to be safe and effective -- became available in this country in December 2020 and continue to be widely available. If only Americans were willing to get a couple of jabs to suppress the incidence of the virus to manageable levels. Then we could all get our lives back, see our children return to school, visit distant friends and family, take the brakes off the economy, and more.

Instead, vaccine hesitancy has been compounded by a Republican Party -- especially GOP governors looking at the 2024 presidential nomination and conservative media personalities (more influential than elected officials) enriching themselves by spinning creepy narratives -- eager to twist a public health crisis into a weapon directed against their political opponents: Democrats in office, candidates for office, citizen activists; even Democratic constituencies living in urban areas (Miami, Houston) are fair game.

We couldn't have imagined in 2001 that vaccines (mandated for kids in all 50 states, even today, even in southern and rural states with ambitious Republican governors) for a killer disease would become a partisan issue. But that is what has happened:

The unvaccinated pose a threat to all of us, including the vaccinated majority. The more unvaccinated folks there are, the higher the incidence of the disease in the community, increasing the risks for everyone. As hospitals are overwhelmed with COVID patients, folks injured in a serious accident or experiencing an acute medical emergency may find their care delayed and, when nurses and doctors are worn out, the quality of care declines for everyone and mistakes multiply. Children (not yet eligible for the vaccine) headed back to school are more likely to encounter the disease when the incidence is rampant. Getting vaccinated, or not, is not just a personal choice; it is highly impactful for everyone.

President Biden spoke for many of us when he said to the unvaccinated holdouts: "We’ve been patient, but our patience is wearing thin.  And your refusal has cost all of us."

In the midst of this pandemic of the unvaccinated, and the aggressively belligerent opposition, President Biden finally decided to step up the campaign to make our communities safe: with mandates. He was met immediately with frenzied opposition.

Regarding the court challenges to come:

Have at it. Look. I am so disappointed that particularly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities. This is, this is – we’re playing for real here. It isn’t a game.
And I don’t know of any scientist out there in this field that doesn’t think it makes considerable sense to do the six things I’ve suggested. But, you know, it’s a – Let me conclude with this…. One of the lessons that I hope our students can unlearn is that politics doesn’t have to be this way. Politics doesn’t have to be this way.
They’re growing up in an environment where they see it’s like a war. Like a bitter feud. The Democrat says right, everybody says left. If the Democrats say left, they say right. I mean, that’s not how we are. That’s not how we are as a nation. And it’s not how we beat every other crisis in our history.
We’ve gotta come together. And I think the vast majority – look at the polling data – the vast majority of the people know we have to do these things. They’re hard, but necessary if we’re gonna get ’em done.

[Note: this post was written, as with all the commentary referenced in the post, before the August 26 suicide bombing at Hamid Karzai International Airport.]

That's the assessment of Jonathan Chait on the media coverage Biden is getting. (The quotation is the subhead on Chait's post, "Why the Media Is Worse for Biden Than Trump," on New York magazine's homepage.)

Last night, Brian Williams, after playing a Fox News clip of Kevin McCarthy asserting that Biden is “siding with the Taliban” and then reading a Jonathan Allen quote suggesting that “bipartisan criticism” risks putting Democrats in jeopardy in 2022 as well the Biden agenda, asked James Carville about the possible political fallout of the messy withdrawal from Afghanistan. Carville responded:

“Well first of all, there’s no elegant way to lose a war. We lost this war 15 years ago. All Joe Biden’s doing is telling us what time it is. And the hysterical and stupid coverage of the mainstream press has just been awful. Just read New York magazine or Josh Marshal at Talking Points.”

I'm with Carville in recommending both NY mag and TPM as antidotes to the unbalanced pack journalism we're seeing, though many observers have been critical of what we're reading in the press and seeing on cable news channels on the Afghan withdrawal. Doug Muder provided an excellent wrap-up ("Afghanistan, Biden, and the Media") several days ago.

Chait draws attention to the familiar fact that the mainstream media is only half the story (and sometimes not the dominant half). Fox News Channel and the conservative media complex have an outsized influence. Byron York boasts of the startling reach of FNC. And that reach is not confined to partisan viewers, or to the cable channels competing for viewers; it affects news coverage across the mainstream media. Chait sums up:

The mainstream media certainly gave Trump harsh and even overtly hostile coverage. But the mainstream media only describes roughly half the media landscape. The other half of the media is a right-wing messaging apparatus that makes no effort to follow traditional journalistic norms. Republicans communicate to their base through a media that functionally operates as part of their party, while Democrats communicate to their base through a media that still exerts substantial independence. If you want to understand the strange difficulty that Joe Biden’s sane, competent administration has in yielding measurably higher approval than Trump’s insane, incompetent presidency, the asymmetrical relationship between the two parties and their respective media environments is the most important place to start.

Yeah. We're accustomed to regarding Fox News (and other propaganda organs of the GOP) as background noise that only Republican partisans tune into, but the landscape is harsh:

• When Trump got negative coverage in the mainstream press, FNC and company continued to fawn over him. (It might not have been fair, but it generated a balance between competing interpretations.)
• When Biden gets positive coverage from mainstream sources, FNC and the conservative media continue to pour on the hostility.
• When Biden gets negative coverage from the mainstream press and from the conservative propaganda apparatus, there is only one story line: Biden is a disaster.

Look at the headline at the top of this post again. On one level, it's shocking isn't it? Yet, given the influence of Fox News Channel, king of hill of conservative media (and all the wannabes yipping at FNC's tail), it's hard to dispute its accuracy.

Kevin Drum, whose persistent commentary highlighting FNC's influence (increasing GOP votes in elections, shaping mainstream media news coverage, and -- of course -- stoking the rage of FNC viewers against Americans who don't share their political views) goes back many years, recently concluded: "It is Fox News that has torched the American political system over the past two decades . . . ." And the flames are burning as brightly as the wildfires in the west.

Election law maven Rick Hasen suggests that two 6-3 rulings by the Supreme Court (vigorously opposed by the justices in the minority) reveal the conservative majority as "hostile to American democracy."

"In one case, Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states. In the other, Americans for Prosperity v. Bonta, the court has laid the groundwork for lower courts to strike down campaign finance disclosure laws and laws that limit campaign contributions to federal, state and local candidates.
The court is putting our democratic form of government at risk not only in these two decisions but in its overall course over the past few decades."

Rick Hasen, "The Supreme Court Is Putting Democracy At Risk"

Chief Justice John Roberts, throughout a career stretching from the Reagan White House in the early 1980s to Shelby County v. Holder in 2013 (outlawing pre-clearance) to the Brnovich decision (even more devastating to the law), has waged a war against the Voting Rights Act of 1965 (as others noted today).

Today's decision was written by Samuel Alioto, who one court watcher deemed (circa 2014) "the most reliable Republican partisan" on the court. The majority opinion is an apt expression of the majority's longstanding hostility to the 1965 law, as Justice Elena Kagan suggested in her dissent:

The Voting Rights Act of 1965 is an extraordinary law. Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this Court has treated no statute worse.

In the second decision the majority begins to retract what was an apparent silver lining in its notorious Citizens United v. FEC decision (which overturned restrictions on corporate campaign contributions): Justice Anthony Kennedy's opinion (which insisted that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption") suggested that, while corporations could spend unlimited amounts, public disclosure of those contributions permitted voters to make informed choices:

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

Today's Americans for Prosperity decision threatens to take that away, as Justice Sonia Sotomayer suggested in dissent; in Ian Millhiser words: "The upshot is that wealthy donors now have far more ability to shape American politics in secret — and that ability is only likely to grow as judges rely on the decision in Americans for Prosperity to strike down other donor disclosure laws."

Altogether, not a good day for democratic governance, voting rights, or the principle that citizens have a right to know which rich folks and corporations are giving money, and how much, to political campaigns.

It is difficult to avoid the conclusion (based on decisions going back a decade or more) that in recent years the justices appointed by Republican presidents (that is, the justices that have formed the majority in most of the court's closest decisions) are collectively doing the bidding of the contemporary Republican Party, and that (as with today's cases) many of these decisions are fundamentally anti-democratic.

I intend to elaborate on and defend this view in future posts.

If Justice Stephen Breyer (age 82) leaves the court when Mitch McConnell is majority leader, the Senate will not confirm anyone that a Democratic president nominates. Recent history and a promise from McConnell confirm this. So numerous progressives have pushed Breyer to resign to ensure that a Democratic president can choose his replacement while Democrats control the Senate. More than one court watcher believes pressuring Breyer is likely to be counterproductive.

Noah Feldman observed last March:

Throughout his career, Breyer has believed that ideology and party are far less important than clear thinking and smart regulatory policy that makes people better off without costing more than it is worth. This perspective has come through in his extensive writing and lecturing, where he has emphasized that judges are not and must not be considered partisan political actors. If Breyer has an ideology, it is the rejection of ideology in favor of pragmatism.

Dahlia Lithwick agrees:

The more we politicize the court and its work, the more judges and justices must perform their own neutrality. This isn’t just ego or narcissism; it is exactly the kind of institutionalism Breyer has expressed over and over throughout his career. “If the public sees judges as ‘politicians in robes,’ ” he said in an April speech that sent progressives into fits, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” When Breyer takes a bold public stand for neutral, technocratic judges, it’s not just because he believes that of himself. It’s because he wants us to believe that, because he thinks it’s necessary to preserve the legitimacy of the judicial branch.
His need for judicial neutrality is existential, which is why browbeating him about the fact that he is idealistic, naïve, or playing straight into Mitch McConnell’s cynical, Montgomery Burns–rubbing hands really is akin to getting the Easter Bunny or the tooth fairy in a headlock and demanding that they admit they aren’t real.

Justice Breyer's view is difficult to square with what we can plainly observe. Harvard Law professor Randall Kennedy is emphatic in rejecting Breyer's view:

In an effort to portray the Court as independent of politics, Breyer propounds preposterous propositions. “I believe,” he writes, “that jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements.”

Nonetheless, Kennedy predicts that Breyer will soon resign. Neither Feldman, nor Lithwick venture a prediction. Time will tell.

And then there's Senator Joe Manchin. While his arguments for preserving the filibuster are flimsy and unconvincing (like Breyer's view that judges are not partisan political actors), and his surprising compromise proposal on voting rights is certainly going nowhere if the West Virginia senator is unwilling to entertain changing the filibuster rule, it doesn't look like he's going to budge. Evan Osnos observes:

…  On June 6th, in an op-ed in the Charleston Gazette-Mail, Manchin wrote that he would not alter the filibuster or advance a voting-rights bill with no Republican support. “I believe that partisan voting legislation will destroy the already weakening binds of our democracy,” he wrote. The voting-rights bill, which Senate Democrats had declared their top priority, was effectively dead. . . .
Nobody who knows Manchin well was surprised by his decision. “I would bet a year of my salary that he would not agree to change the filibuster,” Jonathan Kott, a former senior adviser to Manchin, had told me. “He would quit the Senate before he does that.” There was little that Democrats could do to persuade him. They could threaten to take away his position as chairman of the Energy and Natural Resources Committee, but that would only improve his reputation with conservatives at home. Progressives could challenge him in a primary, but, if they lost the general election, they would likely end up with a Republican along the lines of the state’s junior senator, Shelley Moore Capito, who has voted to repeal the Affordable Care Act, defund Planned Parenthood, block the covid-relief bill, and acquit Trump, twice. If Democrats want to feel less captive to Manchin, they need to figure out how to elect more Democrats in places like West Virginia.

Harry Reid disagrees with Kott. He told Ostnos that he expected Manchin to come around: “I think there’s going to come a time when Joe’s going to say, ‘I’ve given it all this time. I’ve tried to be bipartisan. We can’t take it anymore.’”

I'm not taking any bets, but regardless of what Manchin does, I believe Ostnos has neatly summed things up: If Democrats want to feel less captive to Manchin, they need to figure out how to elect more Democrats in places like West Virginia.

Republican state legislatures across the country are putting in place obstacles to voting; more ominously, they are setting the stage to overturn future elections when Republicans don't win; and, they can be expected to gerrymander House districts (and state legislative districts) in the coming year. The Senate is constitutionally malapportioned to benefit small states and, in recent history, that benefits the Republican Party. The GOP has already captured the Supreme Court, so judicial remedies at the federal level will be few and far between.

Democrats will have an uphill climb in Congressional elections in both 2022 and 2024. Whether or not Congress acts on voting rights this summer, there is much more to do -- in campaigns for the House, the Senate, and critically important races for executive offices and legislative seats in the states -- to defend our democracy going forward.

One of the parties in our two-party system threatens our democratic institutions by endorsing, accepting, or giving a pass to authoritarian, undemocratic, and conspiratorial activities -- and the lies that undergird them. These reports are from the past week:

1. Karoun Demirjian and Matt Zapotosky at the Washington Post offer a sampling of Trump’s crazed, desperate abuse of the authority granted to presidents, as he scrambled to stay in the White House after losing the 2020 election decisively.

On the same day the electoral college met to certify the election results — which was also the day Trump announced that William P. Barr would be stepping down as attorney general — the president’s assistant sent Rosen an email with a list of complaints concerning the way the election had been carried out in Antrim County, Mich.
The file included a “forensic analysis” of the Dominion Voting Systems machines the county employed, alleging they were “intentionally and purposefully” calibrated to create fraudulent results. It also included “talking points” that could be used to counter any arguments “against us.”
“It’s indicative of what the machines can and did do to move votes,” the document Trump sent to Rosen reads. “We believe it has happened everywhere.”
. . .
The email about Antrim County was sent by the White House to Rosen shortly before 5 p.m. on Dec. 14. Two minutes later, a Justice Department official forwarded the materials to the U.S. attorneys for the Eastern and Western districts of Michigan, according to the documents released by the House Oversight Committee.
. . .
On Jan. 1, Meadows forwarded Rosen a YouTube link with a subject line suggesting it was a video in which a retired CIA station chief argued that the 2020 election totals were altered by the Italians. Rosen appeared to forward the email to his acting deputy, Richard Donoghue, who responded simply: “Pure insanity.”
Nonetheless, the pressure campaign from Trump’s White House staff continued unabated, as aides sent Rosen purported evidence of fraud in states from New Mexico to Pennsylvania during the week between Christmas and New Year’s, and in the earliest days of 2021.
. . .
On Dec. 29, Molly Michael, an assistant to Trump, emailed Rosen, Donoghue and then-acting solicitor general Jeffrey B. Wall a draft of a Supreme Court brief seeking to make the challenge.
“The President asked me to send the attached draft document for your review,” Michael wrote, adding that she had also shared the document with Trump’s chief of staff and the White House counsel.
That month, the Supreme Court had thrown out an effort by the state of Texas to sue Georgia, Michigan, Pennsylvania and Wisconsin over how they conducted their elections, asserting that Texas had not shown a legal interest “in the manner in which another state conducts its elections.” The brief would have essentially had the U.S. government take Texas’s place, and also challenge elections in Arizona and Nevada.

Election maven Rick Hasen's comments on the last item (the Supreme Court brief) neatly summarize the whole schmear: "It is brazen, and dangerous, and an affront to the rule of law."

2. Mitch McConnell, who said of Obama, “The single most important thing we want to achieve is for President Obama to be a one-term president,” and of Biden, “One hundred percent of our focus is on stopping this new administration,” continues to confirm my considered judgment of the Kentuckian:

What has distinguished Majority Leader Mitch McConnell is his willingness (sometimes expressed gleefully) to trample democratic norms. It is his determination to violate the spirit of parliamentary rules to score partisan victories. He has boasted of his legislative stratagems focused on winning the next election cycle, not on doing the right thing, or enacting legislation to make Americans’ lives better, or living up to . . . a higher calling than partisanship.

In a conversation with Hugh Hewitt this week – during which he said (as he has in the past) that killing the Garland nomination was “the single most consequential thing I’ve done in my time as majority leader of the Senate” and boasted at the skill he employed to get Amy Coney Barrett confirmed before Trump’s defeat last November – McConnell declared that if he is majority leader in 2024, and if there is a vacancy on the Supreme Court, the Senate will not confirm any nominee of a Democratic president. And if there were a vacancy in 2023? “Well, we’d have to wait and see what happens.”

Jonathan Bernstein puts McConnell’s repudiation of the Senate’s constitutional responsibility to advise and consent (“for McConnell, if it’s not nailed down, it’s up for grabs”) into perspective:

Since 1969, Democratic-majority Senates have confirmed Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Anthony Kennedy (in an election year), David Souter and Clarence Thomas, all nominated by Republican presidents. The last time a Republican Senate confirmed a Democratic president’s nominee was in the 19th century.

Although there were few Democratic presidents throughout the long stretch after the Civil War until FDR’s inauguration, the point stands: McConnell pledges to trash democratic norms whenever he sees a partisan advantage for Republicans.

3. Tucker Carlson has launched a new conspiracy theory: that FBI operatives organized the January 6 attack on the Capitol. Two members of the House Republican caucus, Marjorie Taylor Greene and Matt Gaetz, have already begun to promote the theory.

Tucker Carlson's latest take on the Jan. 6th attack on the capitol is that it was actually an FBI false flag pic.twitter.com/s87r1eQYSU

— nikki mccann ramírez (@NikkiMcR) June 16, 2021

A two-minute sampler from Carlson's soliloquy:

. . . For example, one of those unindicted co-conspirators is someone government documents identify only as Person 2. According to those documents Person 2 stayed in the same hotel room as a man called Thomas Caldwell, an insurrectionist, a man alleged to be a member of the group the Oath Keepers. Person 2 also, quote, stormed the barricades at the Capitol on January 6 alongside Thomas Caldwell.
The government indictment further indicates that Caldwell – by the way is a 65-year old man, this dangerous insurrectionist – was led to believe there would be a, quote, quick reaction force also participating on January 6. That quick reaction force, Caldwell was told, would be led by someone called Person 3, who had a hotel room and an accomplice with him.
But wait! Here’s the interesting thing. Person 2 and Person 3 were organizers of the riot. The government knows who they are, but the government has not charged them. Why is that?
You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6 – according to government documents.  
And those two are not alone. In all, Revolver News reported there are, quote:
“… upwards of twenty unindicted co-conspirators in the Oath Keeper indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities …”
“and in some cases much, much more severe activities – as those named alongside them in indictments.”
HUH!?
So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents, organized at least in part by government agents.
Are you shocked? We’re shocked. We shouldn’t be shocked. Because in March the FBI director admitted that the bureau was infiltrating as many dissenting groups that opposed the regime as it possibly can.

Huh?

I am grateful to Aaron Blake, who outlines Carlson's methodology in weaving this "tangled, conspiratorial web" (so I don't have to). The morass includes suggestive questions, sketchy sources, claims that are often easily disputed, implausible speculations, and leaps to conclusions that are ungrounded in reality.

"Tucker Carlson Tonight" is often the highest-rated program on Fox, while topping the competition on CNN or MSNBC. Even though it may be absurdly loopy, and even more often is untrustworthy, FNC commands greater influence among the Republican base and GOP elected officials than the Congressional leadership of the party.

At a time when one of the political parties in our two-party system is waging war on democracy, Congressional proposals to safeguard democracy, thus far, can't secure majority support in the U.S. Senate for setting aside the filibuster to allow an up or down vote on proposed remedies, chiefly H.R.1 (S.1) and H.R.4 (the John Lewis Voting Rights Advancement Act) at this point, though there is a dire need for more than this.

In my last post, I referenced a 2017 letter from Republican Senator Susan Collins and Democratic Senator Chris Coons urging the 2017 Majority Leader Mitch McConnell and Minority Leader Chuck Schumer to preserve the filibuster for legislation. This was after McConnell and the Republican majority had nuked the 60-vote requirement to confirm Neil Gorsuch, replacing Antonin Scalia on SCOTUS, after burying President Obama's nomination of Merrick Garland. Including Collins and Coons, there were 32 Democratic signatories (counting Maine's Independent Angus King), while 30 Republicans signed on. It's worthwhile to take a closer look at this episode:

The letter, which embraces "extended debate," accompanied Senator Collins' claim that the 60-vote rule "makes bipartisan legislation more likely" and Senator Coons' declaration of Democrats' willingness "to partner with our colleagues across the aisle."

We are writing to urge you to support our efforts to preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate. Senators have expressed a variety of opinions about the appropriateness of limiting debate when we are considering judicial and executive branch nominations. Regardless of our past disagreements on that issue, we are united in our determination to preserve the ability of Members to engage in extended debate when bills are on the Senate floor.
We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body. Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.

Senator Collins' statement: "This letter demonstrates that a majority of the Senate, both Republicans and Democrats, can come together to protect an important tradition of the Senate that recognizes the rights of the minority and makes bipartisan legislation more likely. After the contentious and polarized debate of the past few weeks, I am hopeful that this letter indicates a new determination by a bipartisan group of more than 60 Senators to move forward to solve the pressing problems facing our nation."

Remarks by Senator Coons: "Democrats want the Senate to work, and we are willing to partner with our colleagues across the aisle if we can get things done for the American people. We have a long way to go to heal the wounds between our two parties, but this letter is a small first step towards that important goal."

For folks who are not members of the world's greatest deliberative body, at least the small-d democrats among us, the willingness to urge support for "an important tradition of the Senate," that is, for minority rule (until the moment Mitch McConnell, as majority leader, decides it has ceased to provide a critical partisan advantage to the GOP), may be a headscratcher. It's hardly a mystery to Senate-watchers, however: the filibuster provides political cover for vulnerable senators who wish to duck tough votes (and for the leadership that wishes to see those vulnerable senators survive reelection). As Gregory Koger (political scientist at the University of Miami) explains:

Filibusters help members of the majority party when they are pressured to support proposals that they privately believe are bad policy or risky politics. That is, there are members of the majority party who privately believe their party’s proposals are politically dangerous or terrible policy, but they are afraid to publicly defy their party leadership. In a simple-majority legislature, these conflicted members would have to make difficult choices between their private views or personal interest and the position of their party, backed by a populist president or powerful interest groups. In a supermajority legislature, on the other hand, conflicted legislators can publicly support their party’s position while privately applauding the obstruction of the minority party.

Some of the half dozen or so Democratic senators staying out of the line of fire, while Joe Manchin is bombarded for his defense of the filibuster, may be in this category. Others, like Dianne Feinstein, who still remember the good old days -- when Joe Lieberman was best buds with John McCain and Lindsey Graham, when Orin Hatch and Ted Kennedy teamed up to pass legislation, and when an agreement made in the men's gym trumped fact-finding at a hearing to consider a lifetime appointment to the Supreme Court -- may believe that, somehow, several years into the McConnell era, the Senate might return to its past glory.

The filibuster is a rule that 51 senators (or 50 plus the VP) could change at any time. And "there’s no shortage of reasonable ideas" for changing the filibuster, as Jonathan Bernstein notes this morning in a review of several proposals. There just aren't 51 votes for it.

In 2021 that may mean that no legislation emerges from Congress to counter the deluge of state laws to suppress the vote and, worse, to lay the groundwork for overturning election results when Republicans lose. That's because, with the filibuster in place, it will take 60 votes to get to a solution; that's 10 Republican votes to counter Republican legislatures' anti-democratic crusade. And that's hardly likely.

Democratic voters, activists, and at least a few elected leaders are mad at Joe Manchin (though senators are treading lightly) because he has expressed opposition to the For the People Act (H.R.1/S.1) and vowed "I will not vote to weaken or eliminate the filibuster" (which, because of lockstep GOP opposition, threatens much of Biden's agenda, not just voting rights).

I regard the senator's reasoning in favor of the filibuster in the McConnell era as obtuse and incoherent. When virtually everything is subject to a 60-vote majority (as it is today), this hardly makes bipartisanship, compromise, or finding middle ground possible; more often it is a death sentence for significant legislative accomplishments. I agree with Manchin that, "The right to vote is fundamental to our American democracy and protecting that right should not be about party or politics," but -- since it is the Republicans who are in a mad rush to restrict the right to vote -- I am baffled by his insistence that "congressional action on federal voting rights legislation must be the result of both Democrats and Republicans coming together to find a pathway forward or we risk further dividing and destroying the republic we swore to protect and defend as elected officials."

Nonetheless I can't get enthusiastic about demonizing Joe Manchin. Because after the November election there was a 52-48 Republican majority in the Senate. I was elated when two Democrats won in Georgia in January (and I had no illusions that this was a reliable working majority). And when I think about the first five months of the Biden administration, with a 50-50 Senate and Kamala Harris presiding, compared with even a 51-49 GOP edge -- with Mitch McConnell in charge -- I realize how fortunate Democrats are that West Virgina's Joe Manchin in on the Democratic team.

Manchin's recent op-ed has riled up Democrats, as Hans Noel noted yesterday, "But it should be possible for Democrats to hold two thoughts at once about the West Virginia politician: First, what he is doing is lamentable, damaging to the party’s goals. But second, his presence in the Senate is a gift to the Democratic Party. Having a Democratic senator in 2021 in a state like West Virginia — where neither Hillary Clinton nor Biden could crack 30 percent of the vote — is a remarkable bit of good fortune."

I'll note as well that Joe Biden's casual remark about "two members of the Senate who vote more with my Republican friends," is flatly false. While Manchin is the most conservative Democratic senator, he votes more often with his party, than with the Republicans.

Other Democratic senators back the filibuster (silently)
Furthermore, although the focus is on him, Senator Manchin is not the only Democrat in the caucus on board with the filibuster. Add Kyrsten Sinema. Or add Sinema and Dianne Feinstein. We still haven't identified all the filibuster fans in the party. Most are in the shadows.

Ed Kilgore reminds us of a letter released by Susan Collins and Chris Coons in 2017 (after McConnell and Republicans nuked the filibuster to confirm Neil Gorsuch) urging Senate leaders to preserve the 60-vote filibuster for legislation. As Kilgore notes:

Altogether, 32 of the signatories were Democrats. Their numbers included now–Vice-President Kamala Harris, now–President Pro Tem Pat Leahy, future presidential candidates Cory Booker, Kirsten Gillibrand, and Amy Klobuchar, and liberal icons Sherrod Brown, Mazie Hirono, and Brian Schatz. Of those 32 filibuster-loving Democrats, 28 (counting Harris as Senate president) are still in the Senate, where they were joined by the filibuster-loving Arizonan Kyrsten Sinema in 2019.

Some Democrats have changed their minds (in particular regarding voting rights, even Senator Feinstein), while others may not have budged, but are shunning the limelight. Sam Brodey estimates that as many as seven or eight Democrats may wish to preserve the filibuster, though most silent supporters could cave when the pressure is on to address the Republican war against voting rights, especially if the West Virginian flips.

H.R.1 is not the answer
The Republican war on democratic institutions is a critical threat. The rule of law, free and fair elections, not messing with the vote count, abiding by the results, and a commitment to peaceful transitions of power are under siege. But relying on passage of the For the People Act is a fool's errand.

First of all, H.R.1 was written in 2019, long before the extravaganza of anti-democratic legislation taken up by Republican-controlled legislatures following Trump's November 2020 defeat. It was not crafted as a remedy for the crisis we face.

In the words of the First Read briefing (at NBC), it was "designed as a message bill." That's fine, as a message (or implicit promise of what's to come if we keep the House and win the White House and the Senate in 2020), but that doesn't represent a thoughtfully written piece of legislation. That requires a more complicated and deliberative process -- long before the bill reaches the floor.

H.R.1 has, in A.B. Stoddard's words, "incredible flaws," as she described on MSNBC's "The 11th Hour" on June 8 (the day the presidents of the Urban League and the NAACP, the Reverend Al Sharpton, and other civil rights leaders met with Manchin):

And the problem is that, while everyone wants to focus on Joe Manchin, this never should have gotten to the point where civil rights leaders are going to Joe Manchin in June to ask him to change his mind.
The party leaders, the president, his administration, his top people took it upon themselves to think that wooing him privately over these months was more effective than actually changing the bill. It’s an open secret in Washington that HR1 had no chance of passing through the Senate as S1 and being signed into law; that it has incredible flaws, was drafted in 2019 without consulting key stakeholders in the electoral process – the people around the country who have to run elections and know that these mandates included in the bill without permanent streams of funding could not be met on time for 2022 or 2024.

I'll give "party leaders, the president, his administration, his top people" some slack: they've had their hands full. The failure to craft a viable piece of voting rights legislation is not an oversight or a miscalculation. Like it or not, there are severe limits to what Congress can accomplish in a short time. Add to this that H.R. 4, the John Lewis Voting Rights Act, is in the wings. And Joe Manchin (and Lisa Murkowski) are on board with the bill. That's promising (though the filibuster threatens this promise). As a practical mater, H.R.4 is a better place for progressives (and other small-d democrats) to focus their attention.

H.R.4, though, doesn't address the laws Republican-controlled legislatures are passing to pry authority away from impartial election officials and give to GOP partisans, permitting interference in counting votes and in declaring winners. What can be done about that problem (a more pernicious threat than obstacles to casting votes, which highly motivated voters might overcome)?

Bill Scher recently asked in a tweet whether there was any proposed legislation to address the possibility of election subversion. Nate Cohn replied: "There is not. And not only is there no legislation, there's not even a white paper, a journal article, a think tank policy brief, or anything else."

Since then Scher has offered some ideas. It's past time for Democratic leaders in Congress to focus on crafting practical solutions -- and making sure to keep Joe Manchin in the loop.